D&O Indemnification Provisions in Corporate Governance Documents: Implementing 2020 DOJ Guidance

A live 90-minute CLE webinar with interactive Q&A


Tuesday, November 17, 2020

1:00pm-2:30pm EST, 10:00am-11:30am PST

or call 1-800-926-7926

This CLE webinar will provide corporate counsel with guidance for drafting director and officer (D&O) indemnification provisions in bylaws, LLC operating agreements, limited partnership agreements, and other governance documents as well as contractual indemnification agreements. The panel will also discuss how indemnification provisions interact with a company's D&O insurance policies.

Description

The DOJ recently updated its "Evaluation of Corporate Compliance Programs" in a detailed "Guidance Document," which analyzes three general criteria for such programs (design, implementation, and effectiveness). The DOJ also outlined specific areas federal prosecutors will consider when investigating and deciding whether to charge corporate entities. Given the potential for regulatory scrutiny of corporate actions, robust indemnification protections for directors and officers are critical for a company to recruit and retain qualified leaders. Most directors would not consider serving on a board that fails to protect them from personal liability through both indemnification rights and comprehensive D&O insurance.

While state statutes typically grant some indemnification rights, counsel should also consider preparing governance documents and stand-alone indemnification agreements with directors and officers to address regulatory exposures and other types of corporate governance-related claims. Among other points, strong indemnification provisions should identify who is entitled to indemnification, the scope of indemnity, and any limitations on the right to indemnity.

Counsel drafting D&O indemnification provisions must also understand and anticipate potential statutory and case law limitations, enforcement hurdles, DOJ interplay, and the intersection of indemnification provisions with D&O insurance coverage.

Listen as our authoritative panel of corporate attorneys discusses considerations and strategies for corporate counsel drafting indemnification provisions in corporate governance documents and agreements to protect directors and officers from personal liability in light of state regulations, DOJ guidance, and current case law.

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Outline

  1. D&O protection programs: overview
  2. Statutory indemnification
  3. 2020 DOJ guideance
  4. Drafting considerations
    1. Who is protected?
    2. Scope of protection
    3. Procedural provisions
  5. Bylaws vs. separate indemnity agreements: pros and cons
  6. Intersection between indemnity provisions and D&O insurance

Benefits

The panel will review these and other crucial questions:

  • What exposures are typically covered in comprehensive indemnification provisions--in governance documents and individual agreements--to provide directors and officers protection from personal liability for corporate actions?
  • How does the 2020 DOJ guidance impact counsel's integration of indemnification provisions into corporate governance documents?
  • Under what circumstances might a corporation decide to enter an individual indemnification agreement with its directors or officers?
  • How do D&O indemnification provisions interact with a typical D&O insurance policy in terms of the scope of protection that each provides?

Faculty

Kang, Edward
Edward T. Kang

Managing Member
Kang Haggerty & Fetbroyt

Mr. Kang devotes his practice to business litigation and other litigation involving business entities. Rated AV...  |  Read More

Kovalsky, Kandis
Kandis L. Kovalsky

Member
Kang Haggerty & Fetbroyt

Ms. Kovalsky's practice focuses on a broad range of high stakes complex commercial and business-related civil...  |  Read More

Mukherjee, Brian
Brian H. Mukherjee

Counsel
Goodwin Procter

Mr. Mukherjee advises corporations, directors and officers, risk managers, and other professionals on insurance...  |  Read More

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